Order Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

 

Revision Application No. S – 06 of 2000

 

[Executive Engineer, Highways Division, Moro & others

v. Nazeer Ahmed & others]

 

Applicants               :           Executive Engineer, Highways

Division, Moro & others, through

Mr. Ahmed Ali Shahani, Assistant Advocate General Sindh.

 

Respondents            :           Nemo

 

Date of hearing       :           12-08-2020

 

Date of order           :           27-08-2020

 

 

O R D E R

 

Adnan Iqbal Chaudhry J. – F.C. Suit No. 54/1993 filed by the Respondents / their predecessors (Plaintiffs) for compensation of land consumed in certain road construction projects, was dismissed by the learned Senior Civil Judge, Moro; however, in Civil Appeal No. 10/1999, the learned Additional District Judge, Moro, decreed the suit in part; hence this revision application by the Applicants (Defendants).

2.         It was the case of the Plaintiffs that in 1972-73, the Government of Sindh constructed a road from Moro to Mithani (the ‘first road project’) which utilized part of the Plaintiffs’ ancestral land in Survey No. 373 of Deh Manaheen, Taluka Moro;[1] that in 1977-78,[2] the Government constructed a road to village Puran (the ‘second road project’), which utilized part of the Plaintiffs’ land in Survey Nos. 349, 350 and 351 of Deh Manaheen; that again in 1993,[3] the Government utilized the Plaintiffs’ land in Survey Nos. 383, 385 and 782 of Deh Manaheen to construct the Nather Ditta road[4] (the ‘third road project’). It was contended that time and again the Plaintiffs approached the Executive Engineer Highways, Moro, for compensation of said land, but in vain; hence the prayer for damages @ Rs.100,000/- per acre.

3.         Officers of the Highways Division were arrayed as Defendants 1 to 3. The Land Acquisition Officer was arrayed as Defendant No. 4. The Province of Sindh was arrayed as Defendant No. 5 although it was wrongly sued through the Deputy Commissioner Naushahro Feroze. A written statement was filed by the Executive Engineer, Highways Division, Moro. The suit proceeded ex-parte against the Land Acquisition Officer and the Province.

4.         It was the case of the Highways Division that while the said three road projects had been undertaken by them, the land for the same had been duly acquired by the Government under the Land Acquisition Act, 1894; that for acquiring the land for the first and second road projects in the year 1972-73 and 1977-78 respectively, the Highways Division had made the prescribed payment to the Acquisition Office B&R, Hyderabad, who in turn had released compensation to the affected khatedars, albeit in view of a higher rate subsequently recommended by the Deputy Commissioner Nawabshah, the matter with regards to additional compensation was still pending; that the Plaintiffs had never approached the Land Acquisition Officer for compensation; and that the third road project was constructed under a Senator Scheme sponsored under the Tameer-e-Watan Program. It was further contended that Survey No. 373 in Deh Manaheen claimed by the Plaintiffs, had never been utilized in the road projects.

5.         By judgment and decree dated 12-11-1998, the trial court dismissed the suit holding that the Plaintiffs had failed to prove that in the years 1972-73 and 1977-78 they were owners of the Survey Numbers claimed by them; that village Form-XV produced by the Plaintiffs was not reliable evidence of ownership of the land in question as the same was issued in the year 1980; and that in any case, the remedy of the Plaintiffs for compensation was before the authority/forum designated under the Land Acquisition Act, 1894.

6.         On the appeal of the Plaintiffs (Respondents herein), the appellate court passed judgment for the Plaintiffs holding that village Form-XV was sufficient evidence of the Plaintiffs’ ownership of Survey Nos. 349, 350 and 351; that the evidence showed that land in Survey Nos. 349, 350 and 351 had been acquired by the Government for constructing a road to village Puran (second road project) for which the Plaintiffs were not compensated; and by a preliminary decree dated 19-05-1999, the appellate court proceeded to appoint a commissioner to determine the rate of land and the area acquired. On receipt of the commissioner’s report, the appellate court then passed a final decree dated 23-10-1999 awarding compensation to the Plaintiffs @ Rs.100,000/- per acre to the extent of 4-07 acres of land in Survey Nos. 349, 350 and 351 of Deh Manaheen, Taluka Moro, i.e. a sum of Rs.417,500/-.

7.         Thus, while the trial court held that the Plaintiffs had not been able to prove ownership of any part of the land claimed in the suit, the appellate court held that the Plaintiffs had been able to prove ownership of least of Survey Nos. 349, 350 and 351. The Plaintiffs did not appeal the denial of relief for the other Survey Numbers. Therefore, it is only Survey Nos. 349, 350 and 351 of Deh Manaheen that are relevant to this revision.

8.         The learned AAG Sindh submitted that suit for compensation for land acquired in 1972-73 and 1977-78 was time-barred; that the appellate court mis-read the evidence in holding that the Plaintiffs had proved ownership to the land in question; and that, since the land had been acquired under the Land Acquisition Act, 1894, and since the Plaintiffs had not approached the authority/forum under the said Act for compensation, the civil court could not have exercised general jurisdiction to decide the question of compensation as so held in Abdul Manan v. Chairman WAPDA (1990 CLC 1377).   

9.         Heard the learned AAG Sindh and perused the record.

10.       In their objections to this revision, the Respondents (Plaintiffs) have taken the plea that the revision is time-barred. I advert to that objection first.

The preliminary decree passed by the appellate court is dated 19-05-1999. The final decree is dated 23-10-1999. The revision is directed against both. From the final decree, this revision application filed on 20-01-2000, on the 89th day, is within the limitation of 90 days. However, if separate limitation is computed for the preliminary decree, then to that extent the revision is delayed by 156 days. But then, section 97 CPC which precludes a party from disputing the correctness of a preliminary decree in an appeal from the final decree when no appeal was preferred from the preliminary decree, does not put the same restriction on a revision application. Rather, under section 115 CPC, a revision is against a ‘case decided’. However, that is not to say that a revision application can never be filed against a preliminary decree before the passing of a final decree, inasmuch as the terms of a preliminary decree may well be a ‘case decided’ within the meaning of section 115 CPC.[5]  Nevertheless, in my view, where the question is to the very jurisdiction of the sub-ordinate court to decide the case, such question remains open in a revision from the final decree even though no revision application had been preferred from the preliminary decree.[6]  Thus, this revision is within limitation.  

11.       I now advert to the grounds of the revision. It appears that to hold that the Plaintiffs had proved ownership to Survey Nos. 349, 350 and 352 of Deh Manaheen, the learned appellate court relied on village Form-XV produced by the Plaintiffs. Suffice to observe that in the absence of any document / entry to show title of the Plaintiffs’ predecessors through whom the Plaintiffs claimed to have inherited Survey Nos. 349, 350 and 352, village Form-XV on its own was hardly proof of ownership to the said land.

12.       Be that as it may, like the trial court the appellate court too found that the land claimed by the Plaintiffs in Survey Nos. 349, 350 and 351 had in fact been acquired by the Government under the Land Acquisition Act, 1894 for the public purpose of constructing a road. The learned AAG Sindh has also filed a copy of notice dated 27‑12‑1994 issued under section 9 of the Land Acquisition Act, and the award dated 18-05-1995 made under section 11 thereof in respect of land acquired for constructing the road to village Puran, Taluka Moro, which included the subject Survey Nos. 349, 350 and 351. From the award it appears that while the said land was occupied by the Government in the year 1986, the notice inviting claims for compensation pursuant to section 9 of the Land Acquisition Act was delayed until 1994, after the suit had been filed in 1993. However, even after the suit, when compensation proceedings under the Land Acquisition Act were disclosed in the written statement of the Highways Division, the Plaintiffs did not file a claim for compensation before the Collector pursuant to section 9 of the Land Acquisition Act, nor did they move under section 18 thereof for making a Reference against the award to the court designated for such purpose. The acquisition proceedings remained unchallenged. Therefore, the suit of the Plaintiffs cannot be said to be one envisaged under section 52 of the Land Acquisition Act to question anything done in pursuance of the said Act.

13.       In the circumstances of the case, given the failure of the Plaintiffs to invoke the special jurisdiction of the designated court under section 18 of the Land Acquisition Act, 1894, there was an implied bar, as contemplated under section 9 CPC, to the general / plenary jurisdiction of the civil court to decide the Plaintiffs’ suit for compensation. Such implied bar could only be circumvented if the Plaintiffs demonstrated that the case attracted one of the established exceptions to the ouster of the plenary jurisdiction of a civil court[7], which, as already noted, was not the case set-up by the Plaintiffs.

14.       For the foregoing reasons, the decree passed by the appellate court awarding compensation for land acquired under the Land Acquisition Act, 1894, was without jurisdiction. Accordingly, this revision application is allowed; the judgment, the preliminary decree and the final decree passed by the appellate court in Civil Appeal No. 10/1999 are set-aside; and the judgment and decree passed by the trial court dismissing F.C. Suit No. 54/1993 is restored.

 

 

J U D G E


[1] Plaint and deposition of PW-1, Nazeer Ahmed.

[2] Cross-examination of PW-1.

[3] Cross-examination of PW-1.

[4] Deposition of PW-1.

[5] For what is a ‘case decided’ within the meaning of section 115 CPC, see Anjum Chemical Storage (Pvt.) Ltd. v. Chenab Ltd. Nishatabad (2016 SCMR 177), and Nestle Milkpak Ltd. v. Classic Needs Pakistan (Pvt.) Ltd. (2006 SCMR 21).

 

[6] In Hafeez Ahmed v. Civil Judge, Lahore (PLD 2012 SC 400), the Supreme Court held that if the High Court or the District Court, as the case may be, is of the view that the case decided by the sub-ordinate suffers from a jurisdictional error and must be corrected, the fact that the revision application is beyond the prescribed time is no impediment, as the Court can nonetheless exercise suo moto powers under section 115 CPC to correct the error.

[7] These exceptions are reiterated in Searle IV Solution (Pvt.) Ltd. v. Federation of Pakistan (2018 SCMR 1444).